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Cline v. Horry County Solicitor's Office

United States District Court, D. South Carolina, Florence Division

March 21, 2018

Michael J. Cline, #156213, a/k/a Michael James Cline, Plaintiff,
v.
Horry County Solicitor's Office; O'Neal Law Firm, Defendants.

          REPORT AND RECOMMENDATION

          Jacquelyn D. Austin United States Magistrate Judge.

         Michael James Cline (“Plaintiff”), proceeding pro se, brings this civil action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff is a South Carolina Department of Corrections (“SCDC”) inmate incarcerated at Turbeville Correctional Institution. He files this action in forma pauperis under 28 U.S.C. § 1915. This case is subject to summary dismissal.

         BACKGROUND

         Plaintiff makes the following factual allegations. He was charged on August 29, 2002, with second degree burglary, but that charge was unlawfully changed on April 17, 2003, when he was indicted on a charge of first degree burglary. [Doc. 1 at 5.] The solicitor used evidence of a prior conviction to enhance the charge from second degree burglary to first degree burglary. [Id.] However, that prior conviction was subject to an order of dismissal. [Id. at 6-7.] The trial judge ordered the solicitor and Plaintiff's attorney to produce evidence at trial to support the prior conviction being used to enhance the charge, but neither the solicitor nor Plaintiff's attorney provided the court with the order of dismissal. [Id.] Thus, Plaintiff contends, he was improperly charged, convicted, and sentence for first degree burglary based on a previously vacated conviction. [Id. at 6.] Attached to Plaintiff's Complaint is a copy of a 1996 Order by a state court judge vacating a second degree burglary sentence in a post-conviction relief proceeding, which Plaintiff contends supports his allegation that he should not have been charged with first degree burglary in the criminal case resulting in his current conviction and sentence. [Doc. 1-1 at 7.] Plaintiff contends that the unlawful trial and sentence has led to a complete mental breakdown. [Doc. 1 at 7.] For his relief, Plaintiff requests damages for his unlawful sentence, the solicitor's prosecutorial misconduct, and his attorney's “misrepresentation, ” in the amount of $500, 000.00 per year. [Id. at 7.]

         This Court takes judicial notice[1] that Plaintiff has previously filed a habeas corpus action in this Court challenging the same 2003 conviction of first degree burglary, and the Court granted summary judgment to the Respondent. See Cline v. Bodison, No. 2:08-cv-2124-HMH, Doc. 39 (D.S.C. March 13, 2009), appeal dismissed, Doc. 45 (4th Cir. Aug. 26, 2009). Similarly, Plaintiff has previously filed a § 1983 action in this Court against the Horry County Solicitor's Office and other defendants making identical allegations as those he presents in the instant case, and that case was dismissed as barred by the Heck doctrine. See Cline v. Horry Cty. Solicitor's Office, No. 4:17-cv-623-HMH, Doc. 18 (D.S.C. May 23, 2017).

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

         As a pro se litigant, Plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, the pro se pleading remains subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         DISCUSSION

         The Complaint is filed pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         In his Complaint, Plaintiff brings suit against the Horry County Solicitor's Office and the O'Neal Law Firm alleging violations of the Fourteenth Amendment to the United States Constitution. [Doc. 1.] This case is subject to summary dismissal based on the doctrine set forth in Heck v. Humphrey, as explained below.

         Plaintiff is seeking damages based on his alleged unlawful confinement in SCDC. Plaintiff's § 1983 claim is premature because he is currently serving a sentence for a conviction that has not yet been invalidated. In Heck, the Supreme Court pronounced,

. . . in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for ...

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